[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 08-11534 ELEVENTH CIRCUIT
November 14, 2008
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK
D. C. Docket No. 07-00186-CR-1-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LAMEL DIGGS,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(November 14, 2008)
Before BLACK, BARKETT and FAY, Circuit Judges.
PER CURIAM:
Lamel Diggs appeals his 153-month sentence for (1) armed bank robbery, in
violation of 18 U.S.C. § 2113(a) and (d) (“Count 1”); and (2) possession of a
firearm during and in relation to the commission of a crime of violence, in
violation of 18 U.S.C. § 924(c) (“Count 2”). Diggs argues that this sentence is
procedurally and substantively unreasonable, in that the district court (1) did not
afford Diggs an opportunity to speak before deciding to impose a sentence within
the guidelines imprisonment range, (2) only considered one 18 U.S.C. § 3553(a)
factor, (3) did not adequately explain its choice of sentence, and (4) imposed a
sentence greater than necessary. For the reasons set forth below, we affirm.
I.
On the afternoon in question, 22-year-old Diggs and a codefendant armed
themselves, entered a bank, and yelled for the bank’s staff and customers to lay on
the floor. Diggs fired a round into the bank’s ceiling and began searching for
additional staff and customers in the bank’s offices. His codefendant vaulted the
teller counter and began collecting money from the teller drawers. Diggs and his
codefendant ultimately collected $25,240. They then fled the bank in Diggs’s car.
The police ultimately tracked down and arrested both men. In a post-arrest
interview with authorities, Diggs apologized for his crime and for frightening the
people in the bank that day.
2
Regarding Count 1, a probation officer set Diggs’s base offense level at 20,
pursuant to U.S.S.G. § 2B3.1(a); added two levels, pursuant to U.S.S.G.
§ 2B3.1(b)(1), because Diggs robbed a financial institution; added one level,
pursuant to U.S.S.G. § 2B3.1(b)(7)(B), because Diggs robbed the financial
institution of more than $10,000; and subtracted two levels, pursuant to U.S.S.G.
§ 3E1.1(a), because Diggs accepted responsibility for his actions. The probation
officer set Diggs’s criminal history category at I, as he had no prior criminal
history. With a total offense level of 21 and a criminal history category of I,
Diggs’s recommended guideline imprisonment range for this count was 37 to 46
months. Regarding Count 2, the probation officer noted that, pursuant to U.S.S.G.
§ 2K2.4(b), the mandatory consecutive ten-year term of imprisonment required by
§ 924(c) controlled. The probation officer concluded that Diggs’s total guideline
imprisonment range was 157 to 166 months.
At a sentencing hearing, the district court adopted the probation officer’s
calculations, but subtracted another level, pursuant to U.S.S.G. § 3E1.1(b), because
Diggs timely notified the government of his intent to plead guilty. Thus, Diggs’s
guideline imprisonment range as to this Count I was 33 to 41 months and his total
guideline imprisonment range was 153 to 161 months. Diggs did not object to the
court’s calculations.
3
Diggs requested a downward variance, specifically 120 months’ and one
day’s imprisonment. To this end, Diggs argued that he only was 22 years old, had
worked his entire life and helped his single mother support his younger siblings,
and never had been in trouble before. The district court denied Diggs’s request for
a non-guidelines sentence. The court reasoned that (1) the Guidelines adequately
took into account that Diggs had no prior criminal history and (2) Diggs’s crime
involved a “violent, scary act of premeditated criminal conduct” that must be
“severely punished.” Diggs requested a sentence at the low end of the guideline
imprisonment range.
The district court gave Diggs the opportunity to speak on his own behalf
before the sentence was imposed, but Diggs declined to do so. The court sentenced
Diggs to 33 months’ imprisonment as to Count 1 and 120 consecutive months’
imprisonment as to Count 2. The court explained that it found a sentence at the
low end of the guidelines imprisonment range adequate in light of the nature and
circumstances of the offense, the history and characteristics of Diggs – namely that
he was young and had no prior criminal history, the need for the sentence imposed
to adequately reflect the seriousness of the offense, and the need to avoid
unwarranted sentencing disparities. The court concluded that the sentence imposed
was reasonable in light of § 3553(a).
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II.
After the Supreme Court’s decision in United States v. Booker, 543 U.S.
220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), the sentencing court first must
correctly calculate the guideline imprisonment range and then must treat that range
as advisory and impose a reasonable sentence. United States v. Talley, 431 F.3d
784, 786 (11th Cir. 2005). Specifically, the district court must impose a sentence
that is both procedurally and substantively reasonable. United States v. Hunt, 459
F.3d 1180, 1182 n.3 (11th Cir. 2006); Gall v. United States, 552 U.S. __, 128 S.Ct.
586, 597, 169 L.Ed.2d 445 (2007). The Supreme Court has held that the
reasonableness of a sentence is reviewed under an abuse-of-discretion standard.
Gall, 552 U.S. at __, 128 S.Ct. at 597. “[T]he party who challenges the sentence
bears the burden of establishing that the sentence is unreasonable.” United States
v. Talley, 431 F.3d 784,788 (11th Cir. 2005).
The Supreme Court has explained that a sentence may be procedurally
unreasonable if the district court improperly calculates the guideline imprisonment
range, treats the Guidelines as mandatory, fails to consider the appropriate
statutory factors, bases the sentence on clearly erroneous facts, or fails to
adequately explain its reasoning. Gall, 552 U.S. at __ , 128 S.Ct. at 597. The
Supreme Court instructed that the court “should set forth enough to satisfy the
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appellate court that [it] has considered the parties’ arguments and has a reasoned
basis for exercising [its] own legal decisionmaking authority.” Rita v. United
States, 551 U.S. __, 127 S.Ct. 2456, 2468, 168 L.Ed.2d 203 (2007). Fed.R.Crim.P.
32(i)(4)(A) instructs the court that, before imposing a sentence, it must
(i) provide the defendant’s attorney an opportunity to speak on the
defendant's behalf;(ii) address the defendant personally in order to
permit the defendant to speak or present any information to mitigate
the sentence; and (iii) provide an attorney for the government an
opportunity to speak equivalent to that of the defendant's attorney.
The Supreme Court also has explained that review for substantive
reasonableness involves inquiring whether the statutory factors in § 3553(a)
support the sentence in question. Gall, 552 U.S. at __, 128 S.Ct. at 598-99.
Pursuant to § 3553(a), the sentencing court shall impose a sentence “sufficient, but
not greater than necessary” to comply with the purposes of sentencing listed in
§ 3553(a)(2), namely reflecting the seriousness of the offense, promoting respect
for the law, providing just punishment for the offense, deterring criminal conduct,
protecting the public from future criminal conduct by the defendant, and providing
the defendant with needed educational or vocational training or medical care. See
18 U.S.C. § 3553(a)(2). The statute also instructs the sentencing court to consider
certain factors, including the nature and circumstances of the offense, the history
and characteristics of the defendant, and the need to avoid unwarranted sentence
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disparities among defendants with similar records who have been found guilty of
similar conduct See 18 U.S.C. § 3553(a)(1), (6).
III.
The district court did not impose a procedurally or substantively
unreasonable sentence. See Hunt, 459 F.3d at 1182 n.3; Gall, 552 U.S. at __, 128
S.Ct. at 597.1 First, the court gave Diggs the opportunity to speak before imposing
a sentence on him, as required by Rule 32(i)(4)(A). Although the court already had
denied Diggs’s request for a downward variance, and thus implied that it would
impose a sentence within the guidelines imprisonment range, Diggs has not shown
that the court already had decided on a specific sentence, and thus effectively
imposed a sentence, before allowing him to speak. Thus, Diggs’s sentence is not
procedurally unreasonable for this reason.
Also, although Diggs argues that the district court only considered the
seriousness of the offense, the court heard arguments on Diggs’s youth, work
history, and criminal history, and also specifically stated that it had considered
Diggs’s youth and prior criminal history, such that it clearly considered the nature
and characteristics of the defendant. See 18 U.S.C. § 3553(a)(1). The court also
1
The government suggests on appeal that we review Diggs’s allocution argument for
plain error only, because he failed to raise this objection before the district court. We need not
determine, however, whether plain error review is appropriate regarding any of Diggs’s specific
arguments, as the district court did not commit error, much less plain error.
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explicitly stated that it had considered the nature and circumstances of the offense
and the need to avoid unwarranted sentencing disparities. See 18 U.S.C.
§ 3553(a)(1), (2), (6). Thus, Diggs’s sentence is not procedurally unreasonable for
this reason.
Furthermore, the district court considered the parties’ arguments and
explained that its choice of sentence had to do with the fact that Diggs’s crime was
a “violent, scary act of premeditated criminal conduct” that must be “severely
punished.” This explanation was sufficient to show that the court had a reasoned
basis for imposing the sentence in question. See Rita, 551 U.S. at __, 127 S.Ct. at
2468. Thus, Diggs’s sentence is not procedurally unreasonable for this reason.
Finally, the district court explained that it believed the sentence to be
adequate in light of the nature and circumstances of the offense, the history and
characteristics of Diggs, and the need for the sentence imposed to adequately
reflect the seriousness of the offense. Given the seriousness of Diggs’s crime,
which involved shooting a gun in a room full of people, his sentence was in
keeping with the factors set out in § 3553(a). See Gall, 552 U.S. at __, 128 S.Ct. at
598-99. Thus, Diggs’s sentence is not substantively unreasonable for this reason.
In conclusion, Diggs’s sentence was neither procedurally nor substantively
unreasonable. See Hunt, 459 F.3d at 1182 n.3; Gall, 552 U.S. at __, 128 S.Ct. at
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597. Accordingly, we affirm.
AFFIRM.
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